EU ANTITRUST: HOT TOPICS & NEXT STEPS
EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022
proposed the guidelines that can help predictability of collective bargaining of some of the self-employed persons. 5.2.2 Draft of guidelines of the European Commission In terms of this development and restrictions for self-employed persons for collective bargaining, the European Commission submitted on 9 December 2021 a proposal of Guidelines on the application of the EU competition law to collective agreements regarding the working conditions of a solo self-employed person. As the document is supposed to be in the form of guidelines, not the legislative act, it will bind the Commission to interpret and enforce the EU competition law but it will not bind the Courts or other persons. The Commission try to make the draft technologically neutral and does not distinguish between an online and offline regime, with or without platforms. The proposal recognizes and gives advantage to two categories of collective agreements concluded by the solo self-employed persons concerning their working conditions: • Collective agreements concluded by the solo self-employed persons comparable to workers falling outside article 101 TFEU– such agreements are completely excluded from the regulation of the EU competition law. • Selected collective agreements concluded by solo self-employed persons against which the Commission will now intervene and therefore they will not be sanctioned. First category is based on the definition of the solo self-employed persons comparable to workers. Generally, they have to rely on their own personal labour, namely to provide services on their own, and have to belong to one of the following categories: • solo self-employed persons that are economically dependent to one counterparty (earning at least 50 percent of their total annual work-related income from a single counterparty); • solo self-employed persons working “side-by-side” with workers and were not reclassified by the national authorities or courts as workers (generally they provide services under the direction of their counterparty without the commercial risks of the counterparty’s activity); or • solo self-employed persons providing their services through digital labour platforms (dependency on the digital platforms, especially because of their outreach to customers through the platform, little or no negotiation power to influence their working conditions). The solo self-employed persons that meet above-mentioned requirements are in comparable situation as workers and therefore their collective agreements fall outside the Art. 101 TFEU.
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